ABCC weighs in on Federal Court decision imposing penalties on 75 workers
Summary: The Morrison government’s building regulator has declared a Federal Court decision imposing $105,000 in penalties on 75 workers is a “timely reminder” to workers ahead of a month of ACTU rallies.....
The workers were penalised $1,400 each for taking part in unlawful industrial action at the New Children’s Hospital project in Perth in 2013.
In his decision, Justice Michael Barker said the court’s approach was to “send a message to individual persons, even those who have no prior contravention history of the Act, that the taking of unauthorised industrial action comes at a cost”.
“There is no doubt, as a number of courts have said before and I have said before, the taking of action occurs in a highly regulated environment, he said.
“The Act carries with it the very strong expectation that industrial action will only occur where authorised. Unauthorised action will suffer appropriate penalties.”
On Monday, the Australian Building and Construction Commission warned construction workers they could be exposed to prosecution for unlawful industrial action unless they got advance written permission from their boss to attend ACTU rallies starting next week.
ABCC head Stephen McBurney said today the Federal Court decision “should serve as a timely reminder that there will be consequences for individuals who disregard the law”.
“The ABCC will stand ready to assist any building industry participant who is the victim of unlawful industrial action,’’ he said.
At the time of the Perth contraventions, the maximum penalty for individuals engaging in unlawful industrial action was $10,200. The maximum penalty is now $42,000 for an individual or $210,000 for bodies corporate.
Under the court decision, the Perth workers will not have to pay the penalties themselves and they are expected to be paid by the Construction, Forestry, Maritime, Mining and Energy Union.
Dave Noonan, the national secretary of the union’s construction division, said Australia was the only democratic country in the world where workers were fined for participating in peaceful protest.
He said the comments by Mr McBurney showed he was working “hand in glove” with the government and attempting to intimidate workers from participating in the ACTU’s “change the rules” campaign.
The ACTU executive today called on the government to rule out legislating to stop employees paid as casuals claiming leave entitlements following a precedent-setting court judgment.
WorkPac, the company subject to the judgment, has engaged the SAS Group to lobby politicians, including the Senate crossbench, to back changes to the Fair Work Act it says are needed to mitigate the impact of the ruling.
In an email to the crossbench, SAS principal consultant John Short wrote: “The government has asked us to meet with crossbench senators during the current parliamentary break given the significance and urgency of this matter”.
Jobs and Industrial Relations Minister Kelly O’Dwyer is considering introducing legislation or regulation in response to the ruling, expressing concern about the potential impact of “double-dipping” on small business and the cost to jobs.
The ACTU executive resolution called on the government to immediately rule out any legislation that would allow labour hire firms, or any employer, to continue to misclassify workers simply to reduce their wages.
CFMEU national president Tony Maher said the government should not be encouraging companies to “hoodwink” the crossbench senators into supporting legislative changes to further disadvantage casual workers.
Based on the widespread use of casual labour hire contractors in the coal mining industry, the union estimates “at least several thousand” coal mine workers would be entitled to claim unpaid leave entitlements based on the court decision.
It says the decision is relevant to current or former employees of labour hire companies on a ‘permanent casual’ arrangement, with a continuous length of service at a mine site and paid a flat hourly rate.
In a letter to the crossbench, Mr Maher urged them not to be misled by employers.
“Employer claims of a ‘double-dipping’ bonanza hitting small business are a straight-out con,’’ he said.
“Our decision-makers in parliament deserve to know the truth about the deliberate destruction of permanent jobs in regional communities.”